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Doc. 8552
1 October 1999
Setting-up a European Ombudsman for children
Report
Social, Health and Family Affairs Committee
Rapporteur: Ms Elisa Pozza Tasca, Italy, Liberal, Democratic and Reformers' Group
Summary
There exist many texts on the rights of the child. But what of their implementation? The gap between the principles laid down and the everyday reality of children is far from being bridged. Children's rights are violated. How can they make themselves heard? The setting-up of an ombudsman for children provides a new outlet. Some member states already have such an institution at national level. Europe too must equip itself with this tool.
I. Draft recommendation
1. The Council of Europe recently celebrated 50 years’ existence and work, in particular in the field of standard setting. Many of the conventions, resolutions and recommendations, whether of the Committee of Ministers or the Assembly, have been concerned exclusively or in part with children and their rights. There is also the United Nations Convention on the Rights of the Child, now ten years old. What stage has its implementation reached?
2. It is clear to the Assembly that there is still a gulf between declared principles and reality. For many children in Europe, everyday life consists in prostitution, labour and poverty, while others are cooped up - undernourished and deprived of education - in refugee camps or disabled for life by landmines.
3. This is a state of affairs we must try to do something about. New means must be found of translating countries’ commitments into national reality. Children have rights and they should have some way of making their voice heard if those rights are denied them, which implies legislation, initially at national level, that effectively protects children.
4. Some states - as yet too few - have accordingly created the post of children’s ombudsman and are clearly making progress with regard to protection of minors. Parliamentary Assembly Recommendation 1286 (1996) on a European strategy for children strongly urged that such posts be created at national level, with guarantees of the independence and professionalism necessary to effect a real improvement in children’s circumstances.
5. The task of those working on behalf of children is complicated by globalisation, by the complexity of relations between states and by the use being made of new technologies. A European network linking the small number of children’s mediators already appointed is attempting to respond to the challenges through exchange of information and co-operation.
6. In 1996, following the Dutroux case (see Resolution 1099 (1996) on the sexual exploitation of children), the Assembly drew attention to the need apparent at that time for European-level co-ordination and, echoing the European Parliament, advocated creating the office of European Children’s Ombudsman. The Council of Europe, whose mission is to protect human rights, is the most appropriate organisation to accommodate such an institution, which must be independent and must have powers of initiative.
7. The tasks of the ombudsman’s office would be to promote awareness and implementation of the various conventions on children’s rights, to advise and support all involved in policies for children, to assess the impact on children of different policy options and to devise specific strategies, particularly for the promotion of education for peace and non-violence.
8. The Assembly therefore recommends that the Committee of Ministers
i. ask those member states that have not yet done so to appoint a national children’s ombudsman;
ii. create within the Council of Europe, under arrangements to be specified, the post of European Children’s Ombudsman, to be filled by a person of European standing whose task it would be to champion the cause of children.
II. Explanatory Memorandum by Mrs Pozza Tasca
Is Europe an ideal homeland for children?
1. The Europe of the 21st century: if these words, so full of significance in the Treaty of Amsterdam, actually correspond to reality, then Europe will be not merely a territory for the Euro, but also an area of common nationality, a vast region of the world where all citizens, irrespective of age, will travel freely, enjoy a more effective justice system and be better protected against organised crime through strengthened co-ordination and integration between each State's various systems, particularly legal ones. This at least is the theory.
2. However, laws advance at the same speed as humans. The information that is known about child migrants or economically or sexually exploited children demonstrate the extent to which predictions by heads of state and government are unrealistic. Little Turkish workers and the Albanian children who arrive on the Italian coast every day provide us with an image of genuinely abused childhood.
3. Fortunately, we have moved on since the time when recommendations, treaties and conventions were products of political pressures that were mainly interested in projects without real substance, when children especially suffered from the weight of political indifference with regard to the rights of citizens. The child victims in Marcinellee, Volona, Turkey, Rwanda and Albania have raised awareness to such an extent that the need to create new instruments and institutions to help children is now recognised.
4. In order to make the UN Convention operational, the Committee on the Rights of the Child regularly brings pressure to bear on governments so that the majority of countries that have signed the Convention will institute a Children's Ombudsman. This Committee believes that neither the rights nor the attention that children require will be accorded without appropriate institutions, empowered to monitor the Convention's application in the various countries with complete independence.
5. Other international organisations have already given their views on this question. The Council of Europe's Parliamentary Assembly Recommendation 1286 (1996) on a European Strategy for Children recommended that each state appoint a commissioner (ombudsman) for children and asked that the Council of Europe set up a multidisciplinary structure able to deal with issues related to children. In Resolution 1099 (1996) on the sexual exploitation of children, the Assembly renewed its proposal to create a European children's ombudsman in the framework of the Council of Europe.
6. Resolution No. A3-0172/92 on the problems of children in the European Union already invited member States to appoint "a children's Ombudsman to safeguard children's rights and interests at national level, receive their requests and complaints, monitor the application of laws protecting children, and inform and guide the public authorities in their work to uphold children's rights" (paragraph 22). More recently, a report by the European Parliament (A4-0393/96) on the protection of minors in the EU suggested that the Parliament appoint an ombudsman for children who would be empowered to intervene in all areas.
7. The idea that Europe's children should be protected through the institution of a European ombudsman is not new. It would enable us to progress from the stage of announcing children's rights to personalised identification on behalf of each child. The Ombudsman has a duty to give children a voice and make them visible. This institution should not represent just one more bureaucratic structure, but rather guarantee a dialogue with the public authorities in order to exchange views about each child. The European ombudsman should be able to direct the child towards more effective and appropriate assistance for his or her needs, whilst also providing follow-up to each individual case and monitoring the quality of the service received. It should be considered as a reference point by children or, as the Ombudsman for Tyrol put it, it should "have the ears and mouths of children".
8. The rapporteur hopes to be able to contribute as required to the setting up of an institution that could genuinely make Europe a reality for all the children on this continent, the world's oldest; if Europe is described in all the formal texts as a Europe of citizens, it must at the same time be a Europe of children, who are also European citizens.
Ombudsmen in the world: a tangible presence
9. In order to be able to examine their real impact on policies for children, a brief description is required of the various arrangements for the role of children's ombudsmen, as adopted in various countries.
10. According to the database of the Swedish NGO Radda Barnen, twenty countries have so far set up Children's Ombudsmen (Australia, Austria, Belgium, Canada, Costa Rica, Denmark, Finland, Germany, Guatemala, Iceland, Israel, Luxembourg, New Zealand, Norway, Peru, Portugal, Russia, Spain, Sweden and Ukraine). By instituting the "Barneobund" in 1981, Norway became the first country to be equipped with an independent children's ombudsman to promote "the interests of children visàvis public and private authorities".
11. The Ombudsmen's tasks are to protect the needs, rights and interests of minors. They work for the full application of the New York Convention on the Rights of the Child, and support its dissemination. They intervene separately from legal representatives, parents or guardians to represent the child's rights in all sorts of civil or criminal cases where children are directly or indirectly involved. In some countries, the Ombudsman is responsible for adopting assessment methods, such as the "child impact statement", in order to evaluate and identify all possible consequences on children of various legislative proposals, regulations and any other measures.
12. It is clear that in order to perform these functions as well as possible, the Ombudsman must above all be independent and not subject to any supervision on the part of governments and political parties. In particular, the Ombudsman must apply Article 12 of the New York Convention on the rights of the child, which recognises the child's right to express his or her own views freely in all matters affecting him or her, as well as the opportunity to be heard in any judicial and administrative proceedings. This implies that there should be no bureaucratic barrier between children and the Ombudsman. On the contrary, there should be the opportunity for an interview and a direct meeting without the presence of intermediaries. The main objective of the institution of Ombudsman should be to create a voice that represents the interests of all children, whatever their age or ethnic group.
13. In order to be able to gather information about children, the Ombudsman must have access to institutions that deal with them and powers of inspection so that he or she can investigate all cases involving children. The opportunity to influence all decisions concerning children must be ensured by granting consultative status, which in certain situations, such as for the " children's protector" in Costa Rica, becomes irrevocable.
14. With regard to the legal personality accorded to Ombudsmen, various forms exist:
a. Set up by national parliaments (Sweden, Norway, Belgium, Guatemala, Costa Rica, Peru, Columbia, Luxembourg): their authority is derived from the law, they enjoy wide powers of action and are independent of governments. The fact that they are set up by Parliament, the country's most representative structure, protects them from all kinds of political interference and enables them to take critical positions, even with regard to central government. Some of them are entitled to carry out investigations into possible government shortcomings in the area of child protection and to present the results of their investigations to Parliament.
b. Set up in the framework of social policies for children (New Zealand, Australia, Denmark, Austria, Canada): their activities are limited to applying the standards and measures that are provided for in the government's social policy for children.
c. Set up within already-existing public structures (Israel): these ombudsmen have no statutory basis, and consequently no pre-established terms of reference or powers. They operate within government structures and are answerable to the government. In Israel, for example, the Pupil's Ombudsman was created within the Ministry of Education in 1990, and although protection of children's rights is not restricted to educational matters, the Ombudsman's assistants are employed by this Ministry.
d. Set up within NGOs (Finland): NGOs which support children's rights and are active in defending them exist in many countries. In Finland, for example, the Mannerheim League for Child Welfare set up the Office of the Children's Ombudsman in 1981 to provide information and legal consultation services to young people and to help them during proceedings.
15. A brief analysis of the legislation and statistics concerning child protection in those countries that have an Ombudsman enables us to conclude that this institution ensures greater protection for children. New Zealand is a typical
example: the Ombudsman organised police units to identify risk situations involving young people and to recognise and provide immediate assistance to abused children and girls who had experienced genital mutilation.
16. In Norway, the Ombudsman developed legislation to protect children against ill-treatment by families and society and drew up a charter for child protection in hospitals. In Costa Rica, a "child welfare agency" has been set up, and strict legislation has been introduced to protect young people against violence in the media. In Austria, the Federal Ombudsman distributed a leaflet on the Convention on the Rights of the Child in all schools. The same thing happened in Guatemala, where the "Difensoria de los derechos de la Ninez" developed lessons on the New York Convention for children, together with afternoon lessons on the same subject for their families.
17. In Europe, eleven countries recently set up the "European Network of Ombudsmen for Children" (ENOC). Representatives from Austria, Belgium, the Czech Republic, Denmark, Finland, Germany, Hungary, Norway, the Russian Federation, Spain and Sweden drew up an agreement to ensure that the members of the newly-formed organisation work together to improve the lives of European children, and called for the full implementation of the UN Convention and the Council of Europe's European Strategy for Children. They also intend to exchange information and working strategies; provide opportunities for national ombudsmen to meet in order to work on new ideas and promotional campaigns; support all organisations and agencies working at European level for the rights of children within the framework of the European Union, the Council of Europe and the Committee on the Rights of the Child; develop the creation of independent centres for the protection of children's rights and support their activities; work for national policies in favour of children; protect children from the impact of political and economic changes.
18. Trond Waage, the Norwegian representative, was elected as ENOC's first chairperson. The new network is certainly likely to provide a response to the urgent need for wider co-operation between all authorities and child-protection agencies. Indeed, increasingly dramatic statistics on child labour and sexual exploitation make international co-ordination, already unavoidable, even more essential. However, this response alone is not sufficient.
What would be the tasks of a European Ombudsman for children?
19. Certain functions can only be assumed at an inter-state level, namely:
a. guiding and supervising the implementation of international agreements and legislation on children's rights and development;
b. encouraging full implementation of the New York Convention and of the European strategy for children (Recommendation 1286 (1996)) in the Council of Europe's forty member countries and facilitating national policies to promote children's rights;
c. providing regular supervision of the specific implementation of the New York Convention
d. encouraging better understanding of children's rights and responsibilities, by stimulating detailed discussion of the UN Convention in families, schools and various institutional and non-institutional agencies in the member countries, particularly by distributing leaflets on children's rights to schools.
e. providing support to organisations and agencies working for children's rights in the context of the Council of Europe and the Committee on the Rights of the Child;
f. adopting assessment methods such as the "child impact statement" to evaluate and identify all possible consequences for children of various legislative proposals, regulations and any other measures in the various member countries;
g. drawing up supervision mechanisms to prevent child abuse or exploitation of children for labour, pornography or prostitution;
h. preparing strategies for the abolition of discrimination against migrant children or those belonging to minorities;
i. promoting education for peace and non-violence.
Giving children back their voice
20. This brief description enables us to make a general assessment of the importance of the institution of Ombudsman. Acting autonomously, this structure is capable of providing full representation of the children's rights written into the Convention. Whilst the Convention focuses on children, it is also a reminder to adults and a call to include the problems of children and adolescents in the wider community context.
21. Furthermore, ten years after its approval, the Convention requires revision: the provisions that have been integrated into national legislation need to be re-examined, as well as those that have remained formal and not been given substance. We cannot let this date pass without carrying out a general analysis of what has been achieved by the Convention as a whole. The rapporteur has proposed that the Council of Europe hold a conference on children in Tirana on 20 November 1999, in order to give a sign of hope in the very place where children require the most attention and confidence. The situation of the Kosovar refugees brings this proposal chillingly up-to-date and highlights its urgency.
22. The rapporteur hopes that by that date a European Ombudsman will already have been set up, empowered not only to manage emergency situations but also to plan integrated and effective policies for children. The rapporteur believes that Europe genuinely requires such an institution. She has recently made several visits to Albania, and if a European Ombudsman with investigative powers had already been in existence, she would certainly have been able to request the necessary help from him or her to look into suspected trafficking in children's organs and to take the matter further.
23. Other examples could also be given: Benetton, one of Italy's biggest clothing companies and a symbolic brand-name, sub-contracted work to a company in Turkey where 12-year-old children were found working. If the journalist who carried out the investigation had complained to a supranational body with authority to intervene in Turkey, the checks would certainly have been more exhaustive.
24. Certain European countries, including Italy, have set up financial support programmes for Albanian families who are sheltering Kosovar refugees. Safeguards are needed to ensure that this aid reaches those for whom it is intended, and this is another field where the European ombudsman would have a role to play.
25. Children are not citizens of a particular state but of a global village, our world. They are members of the human community, which has a duty to protect and defend them. The children whose throats are slit in Algeria, the child soldiers of Rwanda, Pakistan's child slaves, the children mutilated by mines in Angola and Mozambique, the infant prostitutes in Albania and the children of Kosovo are symbolically Italians, Americans and Germans. Providing help to children is a moral imperative for all, and should be the political priority on government agendas. Rwandan children draw faces without mouths, because life has taught them that calling out from fear or even trying to express their feelings serves no purpose since no-one is listening. Consequently, they become silent, keeping all their pain within themselves. Through the Ombudsman, we have a duty to give them back their voice.
Reporting committee: Social, Health and Family Affairs Committee
Budgetary implications: none
Reference to committee: Doc. 8123, Reference No. 2304, 22 June 1998
Draft recommendation unanimously adopted by the committee on 2 September 1999
Members of the committee: Mr Cox (Chairman), Mr Weyts, Mrs Ragnarsdottir, Mr Gross (Vice-Chairs), Mrs Albrink, MM. Alis Font, Arnau, Mrs Belohorska, Mrs Biga-Friganovic, Mrs Björnemalm, Mrs Böhmer (Alternate: Mr Hornung), MM. Chitaia, Christodoulides, Chyzh, Dees, Dhaille (Alternate: Mr About), Duivesteijn, Evin, Flynn, Mrs Gatterer, MM. Gibula, Gregory, Gülek, Gusenbauer, Haack, Hancock, Hegyi, Mrs Høegh, Mrs Hornikova, Mrs Jirousova, Mr Kalos, Mrs Kulbaka, Mrs Laternser (Alternate: Mr Brunhart), Mr Liiv, Mrs Lotz, Mrs Luhtanen, Mr Lupu, Mrs Markovska, MM. Marmazov, Martelli (Alternate: Mr Lento), Mattéi, Mozgan, Mularoni, Mrs Näslund, MM. Niza, Paegle, Poças Santos, Mrs Poptodorova, Mrs Pozza Tasca, Mrs Pulgar, MM. Raskinis, Regenwetter, Rizzi, Sharapov, Skoularikis, Mrs Stefani, MM. Surján, Tahir, Telek, Valkeniers, Vella, Mrs Vermot-Mangold, MM. Volodin, Voronin, Wójcik
NB: The names of those members present at the meeting are printed in italics.
Secretaries to the committee: Mr Perin, Mrs Meunier and Mrs Clamer